NIGERIAN ARMY V. PHILLIP ABAYOMI (2019)

Background

Phillip Abayomi was a corporal in the Nigerian Army. He was alleged to have been absent without leave, an offence under section 59(a) of the Armed Forces Act 2004. He was charged on two counts, tried summarily by his commanding officer, found guilty and dismissed from the Army on 2006-07-05. The respondent was dissatisfied with the summary trial, conviction and dismissal. He subsequently commenced proceedings before the National Industrial Court of Nigeria on 2014-03-13 by originating summons, seeking several remedies, including the nullification of his dismissal, reinstatement and payment of his salaries and emoluments.

The Nigerian Army filed a preliminary objection. It argued that the action was statute barred under section 2(a) of the Public Officers Protection Act 1990, which generally requires an action against a public officer for an act done in execution of a public duty to be commenced within three months. It also contended that the dispute involved contentious questions of fact and therefore ought not to have been commenced by originating summons. The National Industrial Court dismissed the objection and later entered judgment for the respondent. It held that the summary trial and dismissal violated the Armed Forces Act and the respondent’s right to fair hearing, and it ordered his reinstatement with financial benefits.

The Nigerian Army appealed against both the ruling on the preliminary objection and the final judgment.

Issues

1. Whether the National Industrial Court was correct to dismiss the preliminary objection and assume jurisdiction over the respondent’s action, particularly in view of the three-month limitation period and the use of originating summons.
2. Whether the trial court correctly interpreted and applied section 117 of the Armed Forces Act 2004 concerning the right of an officer, warrant officer or petty officer to elect between summary trial and trial by court martial.
3. Whether the trial court improperly raised and determined the section 117 issue suo motu without giving the parties an opportunity to address it.

Ratio Decidendi

The Court of Appeal held that section 2(a) of the Public Officers Protection Act applied. Two conditions must be satisfied before the protection is available: the defendant must be a public officer, and the act complained of must have been done in pursuance or execution of a law, public duty or authority. The Nigerian Army satisfied both conditions. The commanding officer had statutory authority under the Armed Forces Act to summarily try and dismiss the respondent for the alleged offence.

The court explained that the protection is unavailable where the public officer acts in bad faith, maliciously, outside the scope of authority or without any semblance of legal justification. However, the burden rests on the claimant to plead and establish facts showing such abuse or bad faith. The respondent’s affidavit did not allege malice, spite, personal interest, abuse of office or action outside the commanding officer’s authority. Assertions made in counsel’s written address could not substitute for facts in the affidavit. Since the dismissal occurred on 2006-07-05 and the action was commenced approximately eight years later, it was plainly outside the statutory three-month period.

The Court of Appeal also followed its earlier decision in The Nigerian Army v. Olusegun Ogundipe, which concerned materially similar facts and held that originating summons was an appropriate procedure and that the relevant statutory expression in section 117 extended to the military personnel concerned. The court emphasised the doctrine of stare decisis: the Court of Appeal is bound by its previous decisions except in recognised circumstances, such as conflicting decisions, inconsistency with a subsequent Supreme Court decision, decision per incuriam or lack of jurisdiction. The appellant had not asked the court to depart from its earlier decision and had not established any basis for doing so.

Court Findings

The decisive procedural defect concerned the trial court’s treatment of section 117. Although the respondent’s originating summons referred generally to relevant provisions of the Armed Forces Act, neither party properly canvassed the specific issue whether the respondent, a corporal, was entitled to elect trial by court martial rather than summary trial. The trial court introduced that issue in the course of its judgment, interpreted section 117, and made the alleged failure to provide an election the central basis for granting judgment.

A court may raise an issue suo motu where it is germane to the dispute, but it must then invite the parties, especially the party likely to suffer prejudice, to address the issue before deciding it. Failure to do so violates the right to fair hearing where the issue substantially affects the outcome. The Court of Appeal found that the section 117 issue was a fresh issue, or at least one that had not been argued, and that the lower court’s determination of it without hearing the parties occasioned a miscarriage of justice.

The court further reaffirmed that adjudication must remain within the case made by the parties in their pleadings or affidavit evidence. A court must not rely on conjecture, make a different case for a party, or treat submissions of counsel as a substitute for evidence. The National Industrial Court had wrongly inferred allegations of procedural illegality and lack of fair hearing that were not contained in the respondent’s affidavit.

Conclusion

The appeal was allowed. The interlocutory ruling of the National Industrial Court dated 2015-06-22 and its substantive judgment dated 2016-03-18 were set aside. The respondent’s claims were dismissed as statute barred. Each party was ordered to bear its own costs.

Significance

The decision illustrates the strict operation of statutory limitation periods in actions against public officers and confirms that an allegation of unfairness does not automatically defeat the protection in the Public Officers Protection Act. A claimant must plead facts demonstrating bad faith, abuse of office or absence of legal justification. It also reinforces the importance of judicial precedent, the limits of a court’s power to raise issues on its own motion, and the constitutional requirement that parties be heard on every material issue on which judgment depends.